McFall v. Walker

25 Tex. 327

• Court: Texas Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Wheeler, C. J.

We are of opinion that the court erred in

charging the jury that there was no difference between injury and disease, as concerned the warranty then under consideration. By the charge, the court undertook to decide as matter of legal interpretation of" the instrument, that the term injury was used therein in the sense of disease. That is not the necessary or ordinary meaning of the word, and there is nothing in the instrument to indicate that it was so understood or intended by the parties. From the parol evidence in the case, it would seem that it was not so understood by them. The injury referred to may have caused the disease of Avhich the slave died; but that was a question to be decided by the jury from the evidence. It ought to have been left to them to decide, uninfluenced by such a charge, whether the disease of which the slave died existed at the time of the sale, and whether it was caused by or consequent upon the injury excepted out of the warranty in the bill of sale. We can not say that the jury were not misled by the error in the charge of the court; and are, therefore, of opinion that the judgment be reversed and the cause remanded.

Reversed and remanded.